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In the present case, the Trial Court convicted the
petitioners - accused, in a case related to the dishonour of
a cheque under S.138 of the Negotiable Instruments Act,
1881 (for short, 'the Act'). The petitioners - accused were
sentenced to pay a fine of `6,10,000/-, in default, to
undergo S.I. for a period of one year. The complainant
was held entitled for compensation of `6,05,000/-, in case
of payment of fine by the accused. In appeal filed by the
accused, the said finding was confirmed. Assailing the said
judgment of conviction and order of sentence, as affirmed
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in the appeal, the accused have filed this criminal revision
petition.

2. Sri S. Subramanya, learned advocate for the
petitioners contended that the learned appellate Judge has
erred in law in taking the arguments as heard on
21.04.2010, though he has noted in the Order Sheet, as to
the absence of both the parties before the Court. He
submitted that the appellants were not provided with
reasonable opportunity to address the arguments on
merits of the case. By placing reliance on the decision in
the case of MD. SUKUR ALI VS. STATE OF ASSAM, AIR
2011 SC 1222, he submitted that, criminal case cannot be
decided against the accused in the absence of counsel. He
further submitted that, in the facts and circumstances of
the case and in the interests of justice, interference with
the impugned Judgment of the Appellate Court is
warranted.

3. Sri M.V. Manjunatha, learned advocate for the
respondent, on the other hand submitted that the absence
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of the appellants and their learned advocate on
21.04.2010 was deliberate and hence, the learned
Appellate Judge was justified in perusing the record of the
case and in deciding the appeal on its merit. Learned
counsel sought dismissal of the petition.

4. Perused the record of the case. In the light of
the rival contentions, the short point for consideration is;

" Whether there is denial of reasonable opportunity
of hearing by the learned Appellate Judge and
whether the judgment passed on the appeal is
vitiated?

5. Petitioners, who stood trial, were convicted in
C.C. No.14104 of 2007, on 14.10.2009, by the XXII Addl.
CMM, Bangalore, for the offence punishable under S.138 of
the Act and they were sentenced to pay fine, with default
stipulation. Criminal appeal No.861/2009 was filed on
13.11.2009, assailing the said judgment of conviction and
the order of sentence. On 16.11.2009, while ordering the
issuance of notice to the respondent - complainant, the
sentence imposed on the accused was suspended, subject
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to certain conditions. The Trial Court record was
subsequently called for and was received on 06.04.2010.
Appeal was posted on 21.04.2010 for hearing the
arguments. Advocates appearing for the appellants and
also the respondent, did not appear. Argument was taken
as heard and the appeal was dismissed on 27.04.2010.

6. In identical circumstances, in the case of N.
NAGARAJU, S/O. NARASIMHAIAH, VS. G.R. GUMASTE S/O. LATE
RAMACHANDRA, Crl.R.P. No.1127/2011, decided on 05.10.2012, it
was held by me as follows:

"6. The appeal being against the judgment of conviction, the
appellate Court ought to have granted reasonable time for the
appellant to make alternate arrangement in case the counsel on
record is not available or the Court itself ought to have appointed
an Amicus Curiae, heard the appeal and decided the same. Instead,
the matter was posted to 12.8.2011 and it was taken that, sufficient
time was granted to the appellant and arguments was not advanced.
The sequence of events noticed supra would indicate that
reasonable opportunity of hearing has not been provided to the
appellant. The ratio of decision reported in (1981) Supp. SCC 75
has not been followed. In the circumstances, the judgment passed
by the appellate Judge is vitiated and warrants interference. "

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7. In the case of Md. Sukur Ali (supra), the
question considered by the Apex Court was, whether, in a
criminal case, if the counsel for the accused does not appear, for
whatever reasons, should the case be decided in the absence of
the counsel against the accused or the Court should appoint an
amicus curiae to defend the accused. Upon consideration, it
has been held as follows:

" 7. We are of the opinion that even assuming that the counsel
for the accused does not appear because of the counsel's
negligence or deliberately, even then the Court should not decide a
criminal case against the accused in the absence of his counsel
since an accused in a criminal case should not suffer for the fault
of his counsel and in such a situation the Court should appoint
another counsel as Amicus Curiae to defend the accused. This is
because liberty of a person is the most important feature of our
Constitution. Article 21 which guarantees protection of life and
personal liberty is the most important fundamental right of the
fundamental rights guaranteed by the Constitution. Article 21 can
be said to be the 'heart and soul' of the fundamental rights.

xxx xxx xxx xxx

22. We reiterate that in the absence of a counsel, for whatever
reasons, the case should not be decided forthwith against the
accused but in such a situation the Court should appoint a counsel
who is practising on the criminal side as Amicus Curiae and decide
the case after fixing another date and hearing him. "

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8. In the instant case, the petitioners filed the
appeal on 13.11.2009. Notice was ordered on 16.11.2009,
to the respondent. Lower Court records were called for on
18.11.2009. The record of criminal case was received on
06.04.2010. Appeal was adjourned to 21.04.2010, for
hearing of arguments. On 21.04.2010, the advocates for
the appellants and the respondent, did not appear.
Argument was taken as heard and the case was posted for
judgment, which was pronounced on 27.04.2010. The
saying 'justice hurried is justice buried' applies to the case on
hand. In the circumstances, the Judgment passed by the
Appellate Judge, impugned herein, is vitiated, since
reasonable opportunity of hearing has not been provided
to the appellants.

In the result, the revision petition is allowed and the
impugned Judgment passed by the Appellate Court is set
aside. Crl.A.No.861/2009 is restored for consideration and
decision afresh, both on question of law and fact.

Parties are directed to appear before the appellate
Court on 03.12.2012 and receive further orders. Both the
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parties are directed to render ready co-operation to the
appellate Court to decide the appeal expeditiously and
before 16.02.2013.

Contentions of both parties are left open for
consideration by the appellate Court.